1. This petition has been filed by the petitioner alleging that in the year' 1968-69 he joined first year LL.B. course in the M. L. B. College and appeared at the first year examination conducted to the non-petitioner University in month of April-May, 1969. That in the year 1969-70 a system of examination was introduced in the law course and according to this system, the entire course of each year divided into two semesters-- first from the commencement of the academic session till December and the second after the reopening of the college after the winter vacations till the end of the academic session. According to this system, it was provided that the two semesters will have separate examinations-- for first semester in November/December and for second semester in April/May, followed by a supplementary examination in July/August
2. According to the petitioner, he took admission in LL.B. second year in academic session 1969-70 in M. L- B. College and appeared at the first semester examination of second year LL,B. and was declared pass. He alleges that he submitted an application for appearance in the second semester of LL.B. second year in April/May, 1970. He was permitted to appear in this examination, but on account of his illness he could not appear. However, the question of illness is disputed by the non-petitioner University.
3. According to the petitioner as he did not appear in second semester examination, he did not Join the College, but obtained a certificate to appear as an ex-student in the second semester of LL.B. second year in April/May, 1971. As he was permitted to appear as an ex-student he appeared in the examination and was declared successful. He also alleges that he obtained 59 per cent. marks in this examination.
4. In the year 1971-72, the petitioner completed his three years degree, course in Law and was declared successful. According to the petitioner on 15-3-71 a Rule was enacted by the non-petitioner University and was brought into force. According to this Rule, when a person passes in any subsequent attempt for the purposes of division only 48 per cent, marks will be added up, if he getsmore than 48 per cent, marks. The Rule reads thus:--
'Division shall be declared on the basis of aggregate marks of all the three years. However when a candidate does not pass in any one or more papers in the first attempt but passes it in any subsequent attempt, marks in excess of 48% in subsequent attempt shall not be counted for the purpose of division.'
According to the petitioner, marks obtained by him in the second semester of LL.B. second year examination in May, 1971, were not added to give a division to him on the basis of this Rule. But according to the petitioner as this Rule was enacted for the first time and brought in force on 15-3-71, the petitioner's marks could not be counted on the basis of this Rule as (a) he did not appear in the second semester in 1970, it could not be treated as failing in first attempt, (b) even if, it is treated his first attempt, this Rule having been enacted after the alleged so-called first attempt was completed, the Rule cannot be applied. Retrospective operation to this Rule could not be given by implication as the Rule does not provide for giving retrospective operation. Consequently, the petitioner contended that in the result declared finally, his division has to be altered as the actual marks secured by him in the second semester of the examination held in 1971-72 should be added.
5. According to the non-petitioner-University, the petitioner had filled in the form for appearing in the examination in second semester of LL.B. Part II of 1970. He was also permitted to appear as the permission card was issued to him. The alleged illness of the petitioner is challenged by the University and it is contended that the petitioner did not inform that he was not appearing on account of illness, but he remained absent at the examination, and, therefore, was treated absent and according to the Rules of the University was declared unsuccessful. It is also contended that all others in similar situation are treated in the same manner by the University. Consequently, when he appeared again in the second semester of LL.B, Part II in May 1971. Apparently, it was second attempt, and before the examination in May. 1971, in March 1971, the new Rule referred to above had already been enacted, and, therefore, was applied to the case of the petitioner.
6. It was contended on behalf of the University that there is no question of giving retrospective operation to this Rule as the examination to which this Rule has been applied was held in May, 1971, after the enforcement of this Rule. Consequently, according to the non-petitioner-University, they were justified in applying the Rule while declaring the result and division of the petitioner finally. Learned counsel appearing for the non-petitioner placed reliance on a decision of this Court in Misc. Petition No 89 of 1972 decided on 5-4-73.
7. Two questions arise for decision in this petition, (1) Whether the petitioner, who did not appear in second semester of LL.B. Part II examination held in 1970, but remained absent could be treated as an attempt. (2) Whether the Rule enacted on 15-3-71 will be applicable to the examination of LL.B. Part 13 second semester conducted in May, 1971, The non-petitioner-University, in their return, have stated that the petitioner submitted the application form in the examination of second semester of LL.B. Part II held in May, 1970. It is also stated that the petitioner did not inform the University that on account of illness he was not appearing in this examination, but he remained absent and, therefore, in the tabulation chart and mark-sheet he was marked as absent. Consequently, he was treated as unsuccessful, and, therefore, according to the Rules, this was treated as first attempt. It is also contended that under the Rules of the University, in such a situation, this is always treated as the first attempt and there is nothing on record placed by the petitioner to contradict this stand. Consequently, it cannot be doubted that when the petitioner remained absent from the examination after having obtained the permission to appear in the examination, the University treating this as a first attempt cannot be disputed. Consequently, the petitioner when he did not remain present in the examination of 1971 held, in May, 1970, he did not succeed in his first attempt in the second semester of LL.B. Part II examination.
7. As regards the question of application of the Rule, it is clear that the Rule as quoted above was enacted for the purpose of giving incentive to students who appeared and succeeded in the first attempt. It is clear from the language of the Rule quoted above that it was not meant to be retrospective, but was meant to be prospective. Admittedly, the Rule according to the non-petitioner-University was made applicable to the casa of the petitioner as he appeared in the second semester of LL.B. Part II in May, 1971, which was after this Rule was enacted. According to the petitioner, if he had known about this Rule earlier, he would not have missed his examination in May, 1970. But on this basis, it could not, be said that this Rule could not be given effect to merely because when initially the petitioner missed his examination in May, 1970, he had no knowledge of the Rule, as it could not be contended that the petitioner had any vested right when he missed his examination in May,1970, which by enactment of this Rule is taken away. According to the petitioner, when he filled in the form in the second semester of LL.B. Part II, he planned appearance on the basis of the old Rule, as admittedly under the old Rule, one who passed in the first attempt, or one who passed in subsequent attempts both were treated to be at par, and, therefore, the petitioner did not avail of the examination in May, 1970, and on this basis he wanted to contend that when he entered in the LL.B. course, the conditions could not be altered to his detriment as the three year course with two semesters in every year is one integrated course for LL.B. examination. If the petitioner's contention is accepted, according to the learned counsel Shri J. P. Gupta for non-petitioner-University, a candidate may continue to appear for years, and still no Rules could be altered as on the first day he had put in his form under the old Rules. He contended that each of the three year course split up into two semesters are all separate examination and if before a candidate fills in the form for appearance in any one of the examination, the University chooses to frame Rules or to alter them, the petitioner cannot make a grievance. According to him, as this Rule was enacted on 15-3-71, long before the examination in May,1971, in which the petitioner appeared, he had notice of this Rule when he appeared in the second semester examination in May, 1971, and, therefore, he cannot make any grievance.
8. Shri Justice G.B. Singh in his work on Interpretation of Statutes has summarised the law on the question in these words:--
'Just as the fact that a prospective disqualification under a statute results from anterior misconduct, is not always taken as sufficient to make the statute retrospective, so also, the fact that a prospective benefit under a statutory provision is in certain cases to be measured by or depends on antecedent facts, does not necessarily make the provision retrospective. The inhibition of the rule against retrospective construction is not always applicable to a statute merely 'because a part of the requisites for its action is drawn from time antecedent to its passing'.'
Applying these principles to the present case, it cannot be doubted that the Rule quoted above, applies in the context of certain events, which have taken place before this Rule came into force, but only on that ground it could not be saidthat the Rule is being given retrospective effect when the language of the Rule does not justify the retrospective operation.
9. In view of the discussion above, it cannot be doubted that the Rule quoted above is prospective in character, but can. be given effect to the examination held after this Rule was enacted. Consequently, the Rule will apply to the examination of second semester of LL.B. Part II held in May, 1971, in which the petitioner appeared. Consequently, the University was right in applying this Rule while declaring the final result of the petitioner.
10. In the light of the discussion above, therefore, in our opinion, there if, no substance in this petition. It is, therefore, dismissed, but in the circumstances of the case parties are directed to bear their own costs. Security amount be refunded to the petitioner.